June 8, 2013

In my first post here last week in my new summer series discussing my plans for my law school semester titled "Marijuana Law,
Policy & Reform," I raised some questions about how law professors should think about covering legal history topics in courses not dedicated to legal history. I am deeply grateful for all the helpful feedback I received via this blog and elsewhere, and I am starting to slowly develop a working game plan for how I will cover and discuss Prohibition and related legal and social history during the first part of my law school seminar to be taught at OSU this coming Fall semester.

As the title of this new post highlights, today's topic on which I seek feedback concerns how I should think about covering drug markets and related economic issues in this seminar. As I mentioned when talking about how to cover legal history, I sometimes worry that teaching "poor legal history" may be worse than no legal history. Candidly, I am even more concerned about the prospect of teaching "poor economics" in my seminar — especially concerning modern drug markets, both legal and illegal.

The graphic reprinted here, despite being dated and hard-to-read,
provides just a window into the range of challenging market/economic
issues that surround just the topic of so-called "medical marijuana."
(For the record, and as I plan to discuss at length in my seminar, I am
generally suspicious of any and all uses of the term "medical marijuana"
because so many concepts, both valid and not-so-valid, can be and have
been rolled into this phrase.) The graphic draws some data from (biased?) reports like this one,
titled "The State of the Medical Marijuana Markets," which is produced
by a company trying to market its marijuana market analysis through this website titled Legal Marijuana Markets.

Specifically, one of my chief concerns here is that most, if not all,
of those persons and groups likely to assemble information and analyses
on modern marijuana markets are likely doing so with a specific
advocacy agenda. More broadly, what necessarily defines a black or gray
market is a need or desire not to be transparant about how the market
operates and its various economic inputs and outputs. Indeed, public policy groups like Rand doing sustained reasearch concerning marijuana markets are quick to note that "variation in assumptions such as grams per joint and extent
of underreporting can cause substantial variation in estimates of market
size."

In addition, I am eager in my seminar to integrate stories about the
various historic and modern market/economic realities of marijuana with
the various historic and modern market/economic realities of various
other licit and illicit drugs — ranging from alcohol to oxycodone to
tobacco to valium. Knowing simply that the national marijuana market
might reach up to $10 billion in coming years does not mean much if one
does not also know, for example, that the national alcohol market may be
well over $250 billion and that tobacco companies spend about $10
billion each year on advertising alone.

So, dear readers, any clear thoughts about how I can and should cover
opaque drug market realities? In particular, I would be eager to get
advice on essential dos and dont's: are there certain drug market
dynamics I must be sure to cover and/or certain market myths or economic
falacies I must be sure not to perpetuate in my marijuana seminar?

The title of this post is the headline of this AP report on the indictments coming from a local grand jury on Friday which charge Ariel Castro with hundreds of crimes for spending a decade torturing three young women in his Cleveland home. Here are the details:

A man accused of holding three women captive for about a decade in his Cleveland home — sometimes restraining them in chains — has been indicted by a grand jury on 329 charges, including aggravated murder, rape and kidnapping, prosecutors said.

Ariel Castro, 52, is accused of kidnapping Amanda Berry, Gina DeJesus and Michelle Knight and holding keeping them inside his the run-down home, along with a 6-year-old girl he fathered with Berry.
A Cuyahoga County grand jury returned the indictment Friday against Castro, a former school bus driver fired last fall.

He faces two counts of aggravated murder related to one act, saying he purposely caused the unlawful termination of one of the women’s pregnancies. Castro also was indicted on 139 counts of rape, 177 counts of kidnapping, seven counts of gross sexual imposition, three counts of felonious assault and one count of possession of criminal tools.

Cuyahoga County prosecutor Tim McGinty said the indictment covers only the period from August 2002, when the first of the women disappeared, to February 2007.

The indictment refers to the women as Jane Doe 1, Jane Doe 2 and Jane Doe 3 and gives a glimpse into the circumstances of their captivity.
The aggravated murder counts stem from the unlawful termination of Jane Doe 1’s pregnancy in late 2006 or early 2007, the indictment says.

It says Castro restrained the women, sometimes chaining them to a pole in a basement, to a bedroom heater or inside a van. It says one of the women tried to escape and he assaulted her with a vacuum cord around her neck.

Castro’s attorneys have said he would plead not guilty to any indictment. Castro, during a brief court appearance last month, tried to hide his face, tucking his chin inside his shirt collar, and did not speak.
Castro is being held on $8 million bail. He has been taken off suicide prevention watch, jail officials said this week. He has told jail guards he won’t accept news media interview requests....

The women had gone missing separately between 2002 and 2004, when they were 14, 16 and 20 years old. They haven’t spoken publicly since their rescue....

Castro will be arraigned on the charges next week, and a trial judge will then be assigned.

The investigation continues, said McGinty, the prosecutor. When the indictment process is completed, the county prosecutor’s capital review committee will weigh whether the case is appropriate for seeking the death penalty.
Days after the women were rescued from Castro’s home, McGinty had said at a news conference that capital punishment “must be reserved for those crimes that are truly the worst examples of human conduct.”...

Attorneys for the three women said Friday they were letting the judicial process unfold in the case.
“We have a great legal system plus confidence and faith in the prosecutor’s office and its decisions,” they said in an emailed statement.

DOJ unveils new plans and programming for helping crime victims

As reported in this press release, the US Department of Justice yesterday "unveiled a plan calling for sweeping
changes to advance crime victims’ rights and services in the 21st
century." Here is more from the press release about this interesting and positive development:

Developed by the Office of Justice Programs (OJP) and Office for Victims of Crime (OVC), Vision 21: Transforming Victim Services Final Report [available via this webpage], is the first collective examination in 15 years of current U.S. practices, funding and outreach in the crime victims’ field.

“Today’s announcement marks the latest step forward in the Department’s ongoing work to protect and empower those who have been victimized,” said Attorney General Eric Holder. “Through Vision 21, we’ve gained an unprecedented understanding of the current state of victim services from coast to coast. And we've developed groundbreaking strategies for responding to urgent needs, combating violence and abuse, and providing critical support to crime victims.”

Vision 21 documents the need to better understand who is affected by crime, how they are affected, how they seek help, who reports victimization and the reasons why some victims do not. The report calls for continuous, rather than episodic, strategic planning in the victim assistance field and for statutory, policy and programmatic flexibility to address enduring and emerging crime victim issues. It also calls for the development of evidence-based knowledge founded on data collection and analysis of victimization and emerging victimization trends, services, behaviors and enforcement efforts.

The full 60-page "Final Report" (available here) discusses so many issues relating to crime victims, it is hard to effectively summarize its coverage. Because I have long been concerned about crime victims having ready access to legal counsel to effectively protect and pursue their statutory rights under the federal Crime Victims Rights Act, I found this passage from the report concerning these matters to be especially worth highlighting:

Recognizing that enforcement of crime victims’ rights was inconsistent, CVRA’s bipartisan sponsors understood that rights enforcement would require
access to legal services and professional legal representation at tribal, state, and federal levels. CVRA authorized funding for the “support of organizations that provide legal counsel and support services for victims in criminal cases for the enforcement of crime victims’ rights.”

The 2004 legislation built on a demonstration project launched in 2002 by OVC, which developed and evaluated a network of legal clinics that might serve as models for the provision of pro bono legal representation of victims in criminal court.
Funding for the OVC demonstration project ended in 2009. Most of the 12 legal clinics that were established in a handful of states under CVRA and the OVC demonstration project have since significantly decreased operations or closed. The
full promise of CVRA was not realized, although the many legal issues facing crime victims remain. Moreover, a system of effective legal services that meets the needs of all crime victims must acknowledge and contend with a sobering reality: the
majority of crime victims in the United States never contact law enforcement or step across the threshold of a courtroom.

June 7, 2013

Senate confirms new USSC Commissioners Barkow, Breyer and Pryor

Who says Congress cannot get anything sensible done these days? As reported in this official press release, the "United States Senate yesterday unanimously confirmed the nominations of three new members of the United States Sentencing Commission: Rachel E. Barkow of New York, Judge Charles R. Breyer of California, and Judge William H. Pryor, Jr. of Alabama." Hooray, and here is more from the release on the newbies and the Commissioners they now join:

Barkow is the Segal Family Professor of Regulatory Law and Policy at the New York University School of Law, where she focuses her teaching and research on criminal and administrative law.... Barkow began her legal career by clerking for Supreme
Court Justice Antonin Scalia from 1997 to 1998, and before that for Judge Laurence H. Silberman ofthe United States Court of Appeals for the District of Columbia Circuit from 1996 to 1997. She received her J.D. magna cum laude in 1996 from Harvard Law School and her B.A. with distinction in 1993 from Northwestern University.

Breyer has served as a United States District Judge in the Northern
District of California since 1998. Previously, he [had] brief stint as Chief Assistant District Attorney for San Francisco in 1979. From 1973 to 1974, Breyer worked as an Assistant Special Prosecutor on the Watergate Special Prosecution
Force. He also served as an Assistant District Attorney in San Francisco from 1967 to 1973. Breyer began his legal career as a law clerk to Judge Oliver J. Carter of the United States District Court for the Northern District of California.
He received his J.D. in 1966 from the University of California at Berkeley Boalt Hall School of Law and his B.A. cum laude in 1963 from Harvard College.

Pryor has served as a United States Circuit Judge for the Eleventh Circuit
since 2004. He has also taught federal jurisdiction at the University of Alabama School of Law and has served as an adjunct professor at the Cumberland School
of Law at Samford University. Prior to his appointment to the bench, Pryor served as the Attorney General of the State of Alabama from 1997 to 2004 and as a Deputy Attorney General from 1995 to 1997.... From 1987 to 1988, Judge Pryor served as a law cl erk for Judge John Minor Wisdom of the United States Court of
Appeals for the Fifth Circuit. He received his J.D. magna cum laude in 1987 from Tulane University Law School, where he served as Editor-in-Chief of the Tulane Law Review, and his B.A. magna cum laude in 1984 from Northeast Louisiana University (now University of Louisiana at Monroe).

By statute, the Commission is composed of
seven voting members and two non-voting ex-officio
members. No more than four commissioners may be members of the same political party, and at least three shall be federal judges. The
Commission’s four other
voting members are Judge Patti Saris of the District of Massachusetts (chair); Chief Judge Ricardo H. Hinojosa of the Southern District of Texas; Dabney L. Friedrich of Maryland; and Judge Ketanji B. Jackson of the District of
Columbia.

Welcome to the blogosphere: "The Civil-Criminal Distinction Blog"

I am pleased to learn that the idea of academics starting new blogs about legal issues has not yet become passé, as evidence by this new blog titled "The Civil-Criminal Distinction Blog." This title, obviously, reveals the planned focus for this new blog, but this about page provides these additional details about the author and his plans:

This blog is dedicated to documenting and analyzing the blurry
distinction between civil law and criminal law. I intend to use this
space to call attention to interesting scholarship on the topic, to
highlight current news involving the civil-criminal distinction, to
discuss cases implicating this subject, and to share my own thoughts on
the issue. I welcome comments, both on the blog itself and via e-mail.
My introductory post provides more information.

The modern regulation of sex offenders seems likely to be a frequent topic on this new blog, as evidenced by these two recent substantive posts:

The title of this post is the title of this notable lengthy commentary authored by Tamara Tabo at Above the Law concerning the new complaint of judicial misconduct filed against Fifth Circuit Judge Edith Jones earlier this week. The piece merits a full read for anyone following this brouhaha, and here are some excerpts:

I interned with and clerked for Judge Jones. I didn’t attend the event in Philadelphia [which served as the basis for the complain], and I haven’t spoken with her about this situation, but I don’t claim to be a fully impartial observer. I could be the first among many to attest to her dignity, intellect, and impeccable ethical standards. I could even tell you how generous with her time and supportive she’s been of my law school, a historically (and still predominantly) black institution.

But I don’t need to do that.
I don’t need to offer a character reference in order to rebut the accusations made in this complaint. I don’t even need to contest many of the facts that the complaint alleges.
While there’s not enough space here to evaluate each of the charges the complaint makes, let’s have a closer look at a few of them, starting with her alleged comments on race.

According to the complaint, Judge Jones asserted that “certain racial groups commit more of these crimes than others.” She said that “[s]adly some groups seem to commit more heinous crimes than others.” When asked to explain her remarks, she stated that there was “no arguing” that “Blacks and Hispanics” outnumber “Anglos” on death row and “sadly” it was a “statistical fact” that people “from these racial groups get involved in more violent crime.”

Note that she did not say that race causes criminality, only that we see a disproportionately high number of violent offenders of certain races. These are facts. Even without knowing her, you could easily conclude that Judge Jones thinks these are unpleasant facts. That would certainly explain her alleged repeated use of the word “sadly” in reference to these statistics about race and crime.

If Judge Jones had followed these facts with a different policy claim, would we consider factual statements to be proof of impartiality or impropriety? Or is it less that what she stated was false and more that it was simply not to some liberal audience members’ liking? One could cite these same facts, then proceed to argue for all manner of social reforms — ones that address the causes of the racial disparity in criminality. Doing so would be entirely compatible with what Judge Jones allegedly said during her speech.

What if Judge Jones had said that males were more likely to commit violent crimes than females? Would that be a problem? More violent offenders in our justice system are, in fact, male than female, after all. Would any reasonable person accuse Judge Jones — herself a non-male! — of undermining “public confidence in the judiciary” or being so gender-biased that she would be unfit to handle criminal cases? I hope not.

Correlation is not causation. Nothing in the complaint shows that Judge Jones suggested or thinks that race causes criminality.

The complaint further alleges that Judge Jones engaged in misconduct when she discussed capital defendants who raise claims of mental retardation.
The complaint’s footnote 10 states, “This term is outdated — now generally replaced by “Intellectually Disabled” — and thus Judge Jones’s use of the term “mental retardation” is kept in quotations.”

I work with clients (in a clinical setting, not a legal one) who suffer from severe cognitive impairments. In that setting, I wouldn’t describe a client as “mentally retarded,” because we’re after more precise diagnoses and because, yes, that catch-all term has fallen out of favor. But do you know who does routinely use the term “mentally retarded” in a professional setting? The United States Supreme Court — as quoted in the complaint’s footnote 11, for example. Using that term suggests a willingness to use a legal term of art, not necessarily some outmoded insensitivity to people, say, with Down’s Syndrome.

It is not disrespectful of individuals with disabilities to be angered by false claims of mental retardation, as Judge Jones allegedly was. It does not malign their dignity to suggest that many are capable of choosing between good and evil. Just because one thinks that a particular legal claim is frequently abused does not mean that every instance of such a claim is abusive or legally frivolous. We’re accusing one of the most respected judges of the federal judiciary of misconduct over something that even the Onion satirizes.

The complaint alleges that Judge Jones “indicated that any Mexican National would rather be on death row in the United States than in a Mexican prison” and “stated that Mexico ‘wasn’t about to provide any of their own citizens with the kind of legal protections the person would get in the United States.”
The complaint does not even bother to contest this joke, since it’s (a) a joke, and (b) uncontestable. Even the U.S. consulate helpfully reminds U.S. tourists to Mexico that they won’t benefit from little perks of the American justice system such as the presumption of innocence....

What is it we expect judges to talk about when we invite them to speak, if not some “view from the bench”? We expect them to draw on their actual experiences with actual cases. That is, frankly, why most judges are more interesting to listen to than most law professors.

We rightly expect that judges will not publicly comment on cases currently pending before them. To be clear: no affiant claimed that Judge Jones did so. Once again, even if we take their account of what she said as true, it just doesn’t add up to anything worthy of censure.

If there’s one woman on the planet who doesn’t need a pipsqueak like me defending her, that woman is likely Edith H. Jones. She likely will not dignify these charges with any response. I, however, am not so constrained by that sort of dignity. Obviously.

June 6, 2013

The title of this post is this latest news emerging from the Des Moines Register concerning the questionable conduct of a new federal judge and federal prosecutors in Iowa. Here are some of the ugly details:

The federal prosecutor who received a controversial email from U.S. District Judge Stephanie Rose comparing herself to the Hulk and advising lawyers not to make her angry has left her job with the U.S. Department of Justice.

The departure of Shannon Olson, the former appellate chief for Iowa’s southern judicial district, follows the exit of another federal prosecutor who claims she was fired as the result of age discrimination and harassment by Rose.

A spokesman for the U.S. attorney’s office said Wednesday that Olson no longer works for the Department of Justice, but he declined to say why or when her employment had ended. Olson’s departure follows allegations in court documents that an email Rose sent to her in January might have been intended to warn of potential consequences if Olson testified in the civil lawsuit that accuses Rose of age discrimination and harassment. Olson could not be reached for comment by The Des Moines Register.

Rose has declined to answer the Register’s questions but has indicated she would do so after court cases about the matters are resolved. In court papers, Rose has characterized allegations about her conduct as “inaccurate, at best, and deliberately misleading, at worst.”

The controversial Hulk email was sent by Rose to Olson in January, four months after Rose’s lifetime appointment as a federal judge was confirmed. Two hours after she sentenced a drug dealer to eight years in prison, Rose sent Olson an email in which she likened herself to the comic-book character the Hulk, saying, “You won’t like me when I’m angry. There’s a lesson in there for all attorneys.”...

The email is one of at least three that Rose sent to prosecutors earlier this year. They were first disclosed in the Holm case when prosecutors notified defense attorneys that Rose had written to prosecutor Nicholas Klinefeldt, questioning some of his staff’s practices.

The majority of the issues raised in those emails were related to the wording of court pleadings. But Rose also expressed a concern that prosecutors weren’t presenting all of their evidence, some of which could be used to extend the prison terms of defendants.

After prosecutors mentioned those emails at a hearing, Rose entered the documents into Holm’s court record, but sealed them from public view. A few weeks later, she wrote to several Iowa defense attorneys whose prosecutions she had questioned. She wrote that it was her understanding that Klinefeldt’s office had shared her emails with other members of the bar, and that “inaccurate, or incomplete, information about the email exchange is floating through the bar. And in my experience, that is never a good thing.”

Rose attached copies of the email exchanges with Klinefeldt, but she did not include the email referring to the Hulk that she sent to Olson. Rose has described her emails to prosecutors as “entirely appropriate, generic contact” about errors and inconsistencies in their court filings....

The Code of Conduct for federal judges states that generally a judge should not initiate, permit, or consider communications with only one side in a case except for scheduling, administrative, or emergency purposes, and only if the communication doesn’t address substantive matters.

And, according to the U.S. Judicial Conference Committee on the Code of Conduct, a judge shouldn’t “provide guidance on the ins-and-outs of practice” before the judge’s court or “provide direct assistance in a given case.”

Rose has been a U.S. district judge for the Southern District of Iowa for nine months. She previously worked as a prosecutor and served as U.S. attorney for the Northern District of Iowa from 2009 through August 2012.

The Register has filed a formal Freedom of Information Act request with the U.S. Department of Justice. Among other things, the Register has asked for all emails between Rose and federal prosecutors in Iowa over an 18-week period.

Washington Lawyer cover story asks "Marijuana – Will It Ever Be Legal?"

A helpful reader today sent me a copy of the cover story from the June 2013 issue of the Washington Lawyer, which is the official publication of the D.C. Bar. That cover story is headlined, in full, "Marijuana – Will It Ever Be Legal?; States lead the Charge as Opinions Shifts." (I cannot yet find this story available freely on-line, but I will try to post a link once it is available.)

For regular readers of this blog or for those who closely follow marijuana reform discussions, there is not a whole lot in the article that is new. But the article does a fine job summarizing all the significant legal and social developments in this arena over the last year, and it also includes some notable comments from prominent folks who are skeptical about the pace and direction of recent marijuana reforms. These passages especially caught my attention, in part because I am always looking out for the strongest arguments being made against on-going reform efforts:

[Edward Jurith, a professor at American University Washington College of Law and senior counsel at the White House Office of National Drug Control Policy, has] concerns about the safety of marijuana use, saying the average potency of marijuana seized and tested by federal authorities between 1998 and 2008 has more than doubled. "I think what's been lost in a lot of this debate is the health consequences of marijuana. This is not a safe drug. Looking at the science, I think there is general consensus that while it may be 'safer' than alcohol or tobacco, that kind of a moral relativity argument doesn't make any sense. This is a drug that has some serious health ramifications, and I think that needs to be factored into this discussion more seriously than it has up to now," he says.

"If you look at the history of drug control, particularly with cocaine, there was a real belief that it was a safe drug to use. Half a decade later we wake up with a massive cocaine problem in our country that we're finally getting out of. I'm not arguing for harsh criminal sanctions, I don't think they have worked particularly well, but I think this requires a much more sophisticated and enlightened approach rather than just making the thing available and let's see what happens," Jurith adds.

While Washington intends to put some of the marijuana tax revenue aside for public health education and treatment, some addiction experts worry that there will not be enough money available to deal with what they think will be the inevitable increase in the number of people needing treatment.

"My opinion and the opinion of many addiction professionals is that it doesn't seem as if states are considering all of the ramifications, in terms of the cost of addiction and the threat to public health, ofthe increase in marijuana addiction," said Denise Perme, manager of the D.C. Bar Lawyer Assistance Program.

I find these comments especially interesting because it reveals that even a prominent and long-time warrior in the war on drugs like Edward Jurith is now willing to concede that "there is general consensus that [marijuana] may be 'safer' than alcohol or tobacco."

I am pleased to see this new op-ed by George Will in the Washington Post, which is headlined "Leahy and Paul plan on mandatory sentencing makes sense," urging federal sentencing reform with points that go beyond those I made in my co-authored Wall Street Journal commentary last month urging President Obama to get behind the Justice Safety Valve Act of 2013. Here are excerpts from Will's column:

Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year. They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.

Such crimes are multiplying at a rate of more than 500 a decade, even though the Constitution explicitly authorizes Congress to criminalize only a few activities that are national in nature (e.g., counterfeiting, treason, crimes on the high seas). The federal government, having failed at core functions, such as fairly administering a rational revenue system, acts like a sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm about various wrongs that excite attention.

Approximately 80,000 people are sentenced in federal courts each year. There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration. There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed. This violates the mens rea requirement — people deserve criminal punishment only if they intentionally engage in conduct that is inherently wrong or that they know to be illegal. No wonder that the federal prison population — currently approximately 219,000, about half serving drug sentences — has expanded 51 percent since 2000 and federal prisons are at 138 percent of their supposed capacity.

The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums. This would, as Leahy says, allow judges — most of whom oppose mandatory minimums — to judge. Paul says mandatory minimum sentences, in the context of the proliferation of federal crimes, undermine federalism, the separation of powers and “the bedrock principle that people should be treated as individuals.”...

The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”...

U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Some more thoughtful thoughts on DNA collection and Maryland v. King

Alan Michaels is not only my Dean at the OSU Moritz College of Law, he is also the co-author of Understanding Criminal Procedure (with our colleague Joshua Dressler). Consequently, when he sent an e-mail with some thoughts on the SCOTUS ruling in King concerning DNA collection from arrestees, I was quick to ask his permission to reprint these thoughts in this space. With his permission, here they are:

1) It is surely true that more crimes will be solved by running the DNA of arrestees through a database of unsolved crimes. But the thing that probably troubles me most about the case (as a normative matter, not thinking about correct doctrinal answer), is that the content of the group “arrestees” is framed in a lot of ways by racial bias, so that the impact of this in the long run will very likely be disproportionate apprehension of guilty individuals of color for these unsolved crimes. I like apprehension of the guilty (a lot!), but the potential disproportionate part is very, very, troubling. Although King was limited to arrestees for “serious” crimes, the writing is on the wall; in other contexts “serious” can mean punishable by six months or more, pretextual arrests are not unheard of even without this DNA incentive, and the Court has made clear that custodial arrest is constitutional even for traffic offenses. Indeed, I was deeply moved by the irony of the decision coming down the same day as this report came out [noted in this prior post] showing that all else equal African-Americans are four times as likely as whites to be arrested for marijuana.

If we are going to use new “super methods” for crime solving, that at least make us hinky about privacy, I think we need to do so in a way that does not have a disproportionate impact on subordinated groups. As Scalia points out in dissent (making a different point), we would also solve crimes by swabbing all airline passengers....

2) A different thought though, while still focusing on the real world impact: Justice Scalia is in dissent on this one, while Thomas (his originalist compatriot) and Akhil Amar and Neal Katyal [noted in this prior post] think he is wrong about what the framer’s would have said about DNA swabs. As probably all of you know, I’m not a fan of originalism anyway. I can’t help but notice that this is, once again, a case where Justice Scalia surprisingly is on the side of the criminal defendant as a result of his view of what the framers would have done, but it just happens that the practical impact is most felt around a crime where men are being prosecuted for crimes against women and girls.

First Maryland v. Craig, (Justice Scalia loses war he won first battle of in Coy v. Iowa; child victims of sexual abuse are allowed to testify in separate room from criminal defendant); Second, Crawford (out of court statements where witness unavailable newly excluded as constitutional matter — big impact in domestic violence prosecutions, where victim’s statements previously admitted under hearsay exception when victim would not testify at trial), and now King (DNA that he would forbid being collected used most frequently to solve rapes and other sexual assaults). As one colleague pointed out to me, there are an at least equal number of Justice Scalia pro-defendant cases that do not have this feature (against searches of cars incident to arrest, against warrantless thermal imaging of a home, his anti-Terry view, to name a few), but it may still be a notable feature of relying exclusively on centuries-old perspectives to resolve contemporary problems — something to be considered in weighing the merits of interpretive methods.

June 5, 2013

With thanks to the reader who made sure I did not miss the ruling from late last week, I can report on another state Supreme Court deciding whether to give the Miller's decision prohibition on the mandatory LWOP sentencing of juvenile murderers retroactive effect. Specifically, in a lengthy split opinion in Chambers v. Minnesota, No. A11-1954 (Minn. May 31, 2013) (available here), a majority of the Minnesota Supreme Court decided that "the rule announced in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), is a new rule of criminal constitutional procedure that is neither substantive nor a watershed rule implicating the fundamental fairness and accuracy of the criminal proceeding."

A little concurrence by one of the state Justices expressed hope that "perhaps a clearer explanation of retroactivity doctrine by the United States Supreme Court" might come down in the future.

And the lead dissent gets off to a scientific start via this notable quote by Danish physicist Niels Bohr: "Prediction is very difficult, especially about the future."

The title of this post is the title of this new article by Fiona Doherty just published in the June 2013 issue of the New York University Law Review. Here is the abstract:

The determinacy revolution in federal sentencing, which culminated in the passage of the Sentencing Reform Act of 1984, has since been upended by a little-noticed phenomenon: the evolution of federal supervised release. A “determinate” sentencing regime requires that prison terms be of fixed and absolute duration at the time of sentencing. Because of the manner in which supervised release now operates, however, contemporary federal prison terms are neither fixed nor absolute. Instead, the court has discretion to adjust the length of a prison term after sentencing based on its evaluation of the post-judgment progress of the offender. This power to amend the duration of the penalty is the classic marker of the “indeterminate” sentence.

In this Article, I show how federal supervised release has dismantled the ambitions of the determinacy movement and made federal prison terms structurally indeterminate in length. I conclude that the widespread use of supervised release has created a muddled and unprincipled form of indeterminate sentencing: one that flouts the insights and vision of the nineteenth-century indeterminacy movement as well as the twentieth-century determinacy movement. Having dislocated once-celebrated theories of sentencing, federal supervised release now controls the lives of more than 100,000 people without offering any alternative theoretical basis for doing so. This Article draws on the lessons of a 200 year history to expose the current nature of supervised release and to envision a more coherent role for its future.

I have long viewed supervised release as an important, but badly under-examined and under-theorized, aspect of the modern federal sentencing system. Thus I am pleased to see a prominent article taking on SR in a prominent way.

New federal judge in Iowa accused of acting as "prosecutor-in-chief" at sentencing

The Des Moines Register has this notable new article discussing some unseemly sentencing-related conduct by a new federal judge (and former federal prosecutor) in Iowa. Here are the basics:

One of Iowa’s most prominent federal judges is accused of improperly playing the role of “prosecutor-in-chief” in criminal cases by ordering the U.S. Attorney’s Office to provide evidence that can result in longer prison sentences, court records show.

U.S. District Court Judge Stephanie Rose has complained to U.S. Attorney for the Southern District of Iowa Nicholas Klinefeldt that his prosecutors aren’t providing her with information that can be used to extend prison sentences, according to a Des Moines Register review of emails that are part of a court case and were recently unsealed.

Court transcripts show Rose, a former prosecutor who is now in her first year on the bench, has clashed with prosecutors over that issue in at least three criminal cases this year.

In a case involving convicted drug dealer Bryan Holm, Rose ordered prosecutors to provide evidence that could extend Holm’s prison sentence on a weapons charge. When they refused, citing a plea agreement they had signed, Rose called a police officer to the stand, questioned the officer herself and imposed a sentence that was two to three years longer than what prosecutors had contemplated.

Rose then sent prosecutors an email comparing herself to the comic book superhero the Hulk, saying there was “a lesson” there for attorneys: “You won’t like me when I’m angry.”

Holm’s attorney, Dean Stowers, says in court papers his client was “caught in the crossfire” between Rose and federal prosecutors who refused to do her bidding. Stowers, who is appealing Holm’s sentence, says the Hulk email “tends to support the view that there is a price to be paid” if prosecutors don’t take her advice.

“Any defendant, including Mr. Holm, would be particularly alarmed by such judicial advocacy in seeking to enhance his sentence,” Stowers wrote in court filings.
“Most defendants have a hard enough time defending against the prosecuting attorney. … They at least should expect the judge will not be assuming the role of prosecutor-in-chief,” he wrote.

Rose, who at 40 is the nation’s youngest federal judge, declined to comment on the matter, as did Stowers and Klinefeldt. But in court papers, Rose has characterized Stowers’ allegations about her conduct as “inaccurate, at best, and deliberately misleading, at worst.”
She has also described her emails to prosecutors as “entirely appropriate, generic contact.”

The Code of Conduct for federal judges states that generally a judge should not initiate, permit, or consider “ex parte communications” — that is, communications directed to only one party in a case — except for scheduling, administrative, or emergency purposes, and only if the communication doesn’t address substantive matters.
And, according to the U.S. Judicial Conference Committee on the Code of Conduct, a judge shouldn’t “provide guidance on the ins-and-outs of practice” before the judge’s court or “provide direct assistance in a given case.”

Rose has served as a U.S. District Court judge for the Southern District of Iowa for nine months. She served as U.S. Attorney for the Northern District of Iowa from November 2009 through August 2012.
In that role, she was occasionally accused of being too aggressive in the prosecution of some cases, including that of the former plant manager of Agriprocessors in Postville.

The emails from Rose to Klinefeldt, who has been Iowa’s top Southern District prosecutor since 2009, came to light last week....
The emails — signed by “Steph” and addressed to “Nick” — show that in January, Rose wrote to Klinefeldt and said she was “growing increasingly frustrated” with “a few global issues” regarding the way his office conducted business. In her emails, Rose asked Klinefeldt for a meeting. Klinefeldt responded, “Absolutely.”

Most of the issues cited by Rose deal with what she considered minor errors or inconsistencies in the way prosecutors worded various pleadings or briefs. But Rose also questioned the prosecutors’ reluctance to provide information that could be used to lengthen prison sentences.
She wrote: “I’m troubled by your office’s occasional refusal to provide relevant discovery information to the United States Probation Office. I’m baffled by similar refusals to provide relevant sentencing information to me.”

Rose specifically cited the prosecutors’ refusal to provide information on the use of a firearm in a recent drug-trafficking case involving Devon Braet — information that could have been used to increase Braet’s sentence.
She also cited a case involving John Paul Bowers, who was charged with being a felon in possession of a firearm. In that case, prosecutors didn’t offer any witnesses or evidence to support a longer sentence based on information that the gun in question was stolen.

At Bowers’ sentencing, Rose expressed frustration with prosecutors, saying, “I need more information from the government on why it’s not producing the witnesses that it’s not producing. ... Frankly, my inclination, if I don’t get any other information, is to vary upward to the maximum (sentence), and I don’t know that that’s fair to Mr. Bowers. ... I’m just completely baffled by the government’s position, frankly.”

"NC House vote moves Racial Justice Act closer to repeal"

The title of this post is the headline of this new local article concerning the latest efforts in North Carolina to undo a law that has placed a significant hurdle in the state's efforts to administer the death penalty. Here are the basics:

The legislature took another step Tuesday toward wiping out a signature law that allows convicted killers to be spared the death penalty if they can show court decisions tainted by racial bias.

The 77-40 vote in the state House was largely along party lines, with one Democrat joining all Republicans to repeal the law called the Racial Justice Act. The preliminary vote — the House will likely take another vote Wednesday — came after more than an hour of debate....

The law’s supporters read names of men wrongly convicted of murder, while it’s detractors recited names of murder victims.
“Keep in your minds the victims of the heinous, heartless, cold-hearted killers,” said Rep. Nelson Dollar, a Cary Republican.

The 2009 law allowed people sentenced to death to use statistical evidence to show that race played a significant part in their trial or in the prosecutor’s decision to seek the death penalty. Successful challengers have their death sentences commuted to life in prison.

Last year, the legislature weakened the law by narrowing the use of statistics. The bill moving through the legislature this year would erase the law. The bill would also prevent regulatory boards from penalizing doctors, nurses and other health care professionals from assisting in executions. In 2007, the N.C. Medical Board said it would punish doctors that participated in executions. State law requires that a doctor be present. The N.C. Supreme Court ruled in 2009 that the board had exceeded its authority....

Racial Justice Act supporters said it has exposed racial bias, and so far, has led to findings that prosecutors improperly prevented African-Americans from serving on juries.
“None of us should want to execute any person whose sentence is based on racial discrimination,” said Alma Adams, a Greensboro Democrat.

A Cumberland County judge found last year that jury selection in four death row inmates’ cases was tainted by conclusive evidence of racism. More than 150 death row inmates filed challenges under the 2009 version of the law. The bill debated Tuesday would invalidate more than 140 of the claims that have not been heard in court.

The law’s detractors said it was flawed from the beginning. One of the reasons they gave was that white defendants convicted of murdering white people by all white or nearly all white juries can claim racial bias.
Decisions about the death penalty should be made on the facts of each case, critics said, not on a statistics. They contend that the real intent of the law was to put a moratorium on the death penalty.

“No one wants actual racial discrimination,” said House Speaker Pro Tem Paul Stam, an Apex Republican. “We don’t want race to be used as a pretext to stop the death penalty.”

Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty

As reported in this Texas Tribune article, headlined "Complaint: Judge's Death Penalty Remarks Show Racial Bias," Fifth Circuit Judge edith Jones is the subject of a judicial misconduct complaint based on her comments earlier this year in a speech about race and the death penalty. Here are the basics:

According to a complaint filed Tuesday by civil rights groups, ethicists and a legal aid organization, 5th U.S. Circuit Court of Appeals Judge Edith Jones allegedly said during a February event at the University of Pennsylvania Law School that “racial groups like African-Americans and Hispanics are predisposed to crime,” and that they get involved in more violent and “heinous” crimes than people of other ethnicities....

At the February event, she also reportedly said that Mexican nationals would rather be in a Texas prison than in a prison in their home country. The complaint also takes issue with comments the judge reportedly made criticizing the U.S. Supreme Court’s prohibition on executing the mentally retarded.

“Judge Jones’ biased remarks demonstrated both an utter disregard for the fundamental judicial standard of impartiality and a lack of judicial temperament,” the complaint argues.

Among those who filed the complaint are the NAACP, the Texas Civil Rights Project and the Mexican Capital Legal Assistance Program, which is funded by and represents Mexico in cases where its foreign nationals face capital murder charges in the U.S. It was filed with the 5th Circuit Court’s chief judge, who would decide whether to refer the case to a judicial council made up of 5th Circuit and district court judges. Because Jones is a former chief judge of the 5th Circuit, the group asked that its complaint be transferred to another circuit court for review.

In affidavits filed with the court, people who attended the event where Jones spoke said she denied the existence of systemic racism in the application of the death penalty. They said she contended that more Hispanics and African-Americans are on death row because people “from these racial groups get involved in more violent crime.”

The complaint indicates that Jones also told the audience that exempting the mentally retarded from the death penalty was a disservice. In 2002, the U.S. Supreme Court — amid what Jones reportedly described as a “judicial law-making binge” — decided that the mentally retarded are not eligible for execution because their lack of intellectual ability renders them less culpable for the behavior.

“I am not able to capture the complete outrage she expressed over the crimes or the disgust she evinced over the defenses raised,” Marc Bookman, a capital defense lawyer from Pennsylvania who attended the discussion, wrote in an affidavit.

June 4, 2013

Would legalizing marijuana be a huge step toward a less racialized criminal justice system?

The question in the title of this post is prompted by this notable New York Times article headlined "Blacks Are Singled Out for Marijuana Arrests, Federal Data Suggests." Here are excerpts:

Black Americans were nearly four times as likely as whites to be arrested on charges of marijuana possession in 2010, even though the two groups used the drug at similar rates, according to new federal data. This disparity had grown steadily from a decade before, and in some states, including Iowa, Minnesota and Illinois, blacks were around eight times as likely to be arrested.

During the same period, public attitudes toward marijuana softened and a number of states decriminalized its use. But about half of all drug arrests in 2011 were on marijuana-related charges, roughly the same portion as in 2010.

Advocates for the legalization of marijuana have criticized the Obama administration for having vocally opposed state legalization efforts and for taking a more aggressive approach than the Bush administration in closing medical marijuana dispensaries and prosecuting their owners in some states, especially Montana and California.

The new data, however, offers a more nuanced picture of marijuana enforcement on the state level. Drawn from police records from all 50 states and the District of Columbia, the report is the most comprehensive review of marijuana arrests by race and by county and is part of a report being released this week by the American Civil Liberties Union.... “We found that in virtually every county in the country, police have wasted taxpayer money enforcing marijuana laws in a racially biased manner,” said Ezekiel Edwards, the director of the A.C.L.U.’s Criminal Law Reform Project and the lead author of the report.

During President Obama’s first three years in office, the arrest rate for marijuana possession was about 5 percent higher than the average rate under President George W. Bush. And in 2011, marijuana use grew to about 7 percent, up from 6 percent in 2002 among Americans who said that they had used the drug in the past 30 days. Also, a majority of Americans in a Pew Research Center poll conducted in March supported legalizing marijuana.

Though there has been a shift in state laws and in popular attitudes about the drug, black and white Americans have experienced the change very differently.
“It’s pretty clear that law enforcement practices are not keeping pace with public opinion and state policies,” said Mona Lynch, a professor of criminology, law and society at the University of California, Santa Cruz....

The cost of drug enforcement has grown steadily over the past decade. In 2010, states spent an estimated $3.6 billion enforcing marijuana possession laws, a 30 percent increase from 10 years earlier. The increase came as many states, faced with budget shortfalls, were saving money by using alternatives to incarceration for nonviolent offenders. During the same period, arrests for most other types of crime steadily dropped.

Researchers said the growing racial disparities in marijuana arrests were especially striking because they were so consistent even across counties with large or small minority populations.
The A.C.L.U. report said that one possible reason that the racial disparity in arrests remained despite shifting state policies toward the drug is that police practices are slow to change. Federal programs like the Edward Byrne Justice Assistance Grant Program continue to provide incentives for racial profiling, the report said, by including arrest numbers in its performance measures when distributing hundreds of millions of dollars to local law enforcement each year.

Phillip Atiba Goff, a psychology professor at the University of California, Los Angeles, said that police departments, partly driven by a desire to increase their drug arrest statistics, can concentrate on minority or poorer neighborhoods to meet numerical goals, focusing on low-level offenses that are easier, quicker and cheaper than investigating serious felony crimes.
“Whenever federal funding agencies encourage law enforcement to meet numerical arrest goals instead of public safety goals, it will likely promote stereotype-based policing and we can expect these sorts of racial gaps,” Professor Goff said.

The ACLU report and materials on which this story is based can be found through this webpage, which provides links to reports, graphics, videos and other related coverage of this significant story. The full 187-page ACLU report is titled "The War on Marijuana in Black and White," and can be accessed at this link.

In addition to believing this potent new ACLU data should provide civil rights groups with a strong reason to become even more vocal in support of marijuana legalization, I hope it will force opponents of marijuana legalization to recognize and reflect on who really bears the brunt of marijuana prohibition. Though the rich and powerful like Michael Phelps and Justin Bieber might get a little negative press when seen smoking pot, it is people concentrated in poorer and minority neighborhoods who endure real burdens from the persistence of modern pot prohibition.

Unless and until supporters of marijuana prohibition face up to this disturbing data and aggressive advocate ways to reduce this racial skew in enforcement patterns, I think they can and should be accused of being complicit in perpetuating racial dispaprities in the operation of modern American criminal justice systems. That's right, President Barack Obama and Attorney General Eric Holder, I am talking about you two first and foremost. Unless and until you express at least some support for state marijuana legalization efforts, I will continue to accuse the first black president and the first black attorney general of being complicit in perpetuating racialized American criminal justice system.

"Why the Court Was Right to Allow Cheek Swabs"

The title of this post is the headline of this notable commentary by Akhil Reed Amar and Neal Katyal in today's New York Times. Here are excerpts:

The court decided, 5 to 4, that the Constitution permits the police to swab the cheeks of those arrested of serious crimes, and then do DNA tests on the saliva samples to see if the suspects are associated with other crimes. Justice Scalia joined three liberal justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — in dissenting.

DNA is already revolutionizing law enforcement. The ability for police to use cheek swabs of arrestees rests on a threadbare majority. The closeness of the vote, and the unusual coalitions on either side, suggest that the matter is far from settled. Justice Samuel A. Alito Jr., who was part of the majority, rightly called the case, Maryland v. King, “perhaps the most important criminal procedure case that this Court has heard in decades.”

As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right....

Justice Scalia properly notes that the Constitution’s framers loathed “general warrants,” but these colonial-era warrants had odious features that cheek swabs lack. These general warrants were issued by judges ex parte — that is, in secret, without the affected citizen present — and blocked the citizen from later taking his complaint to a civil jury and seeking damages against the oppressive official. The Fourth Amendment’s words do indeed prohibit general warrants — warrants lacking “probable cause” — but this language regulating warrants simply does not apply where no warrants are involved....

Warrants were not always the framers’ solution; sometimes warrants themselves were the problem. And here, unlike the secret ex parte generalized warrant, the DNA in the Maryland case was collected pursuant to a law enacted by the Legislature. In approving the law, Maryland’s lawmakers knew they would run the risk of being swept up in the DNA database themselves — and balanced that risk against the potential benefits. That is nothing like a secret warrant that could be aimed at a single unpopular individual. To be sure, the framers disliked certain kinds of warrants, but when no warrant has been issued — as in the cheek swab situation — the framers simply required that the search or seizure must be reasonable....

Reasonable minds can differ on this. And therein lies the real genius of the Fourth Amendment. Contrary to Justice Scalia’s view, the framers did not answer the DNA question in 1791. Rather, the framers posed the question for us, their posterity. The distinction between criminal evidence-gathering and all sorts of other government programs and purposes is not an all-purpose touchstone or talisman. Rather, we must ponder how intrusive a given search policy is, how discriminatory it might be in application, how well justified and well administered it is, how democratically accountable it is, how it might bear upon human dignity, and so on.

The words of the Fourth Amendment mean exactly what they say. Warrantless searches are unconstitutional only if they are “unreasonable.” That rule, and no other, is the true “heart of the Fourth Amendment.”

June 3, 2013

In this post just over a year ago, I noted that the South Carolina Supreme Court issued an interesting (and somewhat confusing) ruling in SC v. Dykes which declared unconstitutional some apsects of state law concerning GPS tracking of sex offenders. Then, in this post from last September, I noted on the rehearing of this case by South Carolina Supreme Court. And now, thanks to this new post at The Volokh Conspiracy, I have discovered that a new Dykes decision was handed down last week.

Jennifer Dykes appeals the circuit court's order requiring that she be subject to satellite monitoring for the rest of her life pursuant to sections 23-3-540(C) and (H) of the South Carolina Code of Laws (Supp. 2011). We affirm as modified.

Section 23-3-540 represents a codification of what is commonly referred to as Jessica's Law. Many states have some version of this law, which was enacted in memory of Jessica Lunsford, a nine-year-old girl who was raped and murdered by a convicted sex offender in Florida. Across the country, these laws heightened criminal sentences and post-release monitoring of child sex offenders. The specific issue presented in this case concerns the mandate for lifetime global positioning satellite monitoring with no judicial review. The complete absence of judicial review under South Carolina's legislative scheme is more stringent than the statutory scheme of other jurisdictions. A common approach among other states is either to require a predicate finding of probability to re-offend or to provide a judicial review process, which allows for, upon a proper showing, a court order releasing the offender from the satellite monitoring requirements. See generally, N.C. Gen. Stat. Ann. § 14-208.43 (West 2010) (providing a termination procedure one year after the imposition of the satellite based monitoring or a risk assessment for certain offenders). While we hold that the statute's initial mandatory imposition of satellite monitoring is constitutional, the lifetime requirement without judicial review is unconstitutional.

A lengthy dissent to this notable new version of the Dykes ruling gets started this way:

Because I believe Dykes' status as a sex offender does not diminish her entitlement to certain fundamental rights, I would hold section 23-3-540(C) is unconstitutional because it is not narrowly tailored. I express no opinion on the constitutionality of section 23-3540(H) because that subsection was never challenged and is thus not before us. Dykes' argument is, and always has been, that subsection (C) of 23-3-540 — the provision requiring lifetime satellite monitoring for persons who violate a term of probation and were convicted of committing criminal sexual conduct with a minor in the first degree or committing or attempting a lewd act upon a child under sixteen — violates her substantive due process rights by imposing monitoring without any showing of her likelihood to reoffend. By invalidating a statutory provision not challenged, the majority ignores those settled principles of error preservation and appellate jurisprudence, and awards Dykes a consolation prize she has never requested and arguably has no standing to accept.

Effort to put Maryland repeal of death penalty before state voters in 2014 fails

As reported in this local article, headlined "Petition drives to overturn Md. death-penalty repeal and gun laws both fail; Efforts don’t clear first hurdle in referendum process," it now appears that Maryland voters will not have a chance to weigh in directly concerning the recent repeal of the death penalty in the Old Line State. Here is how the article gets started:

Two separate petition drives — one to place Maryland’s newly adopted law repealing the state’s death penalty before voters in 2014, the other to send the state’s new gun laws to the ballot in 2014 — have failed, according to the sponsors of each effort.

“We collected over 15,000 total signatures,” Del. Neil C. Parrott (R-Dist. 2A) of Hagerstown, who led the death penalty petition, told reporters in Frederick on Friday. “This amount, however is not enough.” A total of 18,579 valid signatures was due to state officials by the end of Friday for each petition drive to continue.

Parrott, chairman of the nonprofit group MDPetitions.com, began the petition effort after Gov. Martin O’Malley (D) signed the repeal into law May 2. MDPetitions.com collected enough signatures to take three bills to referendum in the 2012 election. None, however, was supported by voters.

On Friday, Parrott said if Maryland’s death-penalty repeal had gone before voters, it would have been overturned, citing an unsuccessful attempt in 2012 to repeal California’s death penalty through a ballot initiative.

Parrott was joined by Baltimore County State’s Attorney Scott Shellenberger, who said he wanted to keep the death penalty for the sake of crime victims and their families. “This was a monumental task, and we fell short. We’re obviously disappointed in that,” Shellenberger said. “One day, we’re going to wake up and something really, really bad is going to happen, and we’re going to wonder why we don’t at least have [the death penalty] as an option.”

The repeal measure, sponsored by O’Malley, passed the state Senate 27-20 and the House 86-52 during this year’s General Assembly session.

Jane Henderson, executive director of the nonprofit Maryland Citizens Against State Executions, said repeal supporters are relieved and “very pleased” that the petition drive fizzled. “Most Marylanders are comfortable with [the repeal],” Henderson said. “There just isn’t much fire around this issue on the other side. It’s time to move on.”

The only big SCOTUS ruling in the criminal justice arena today concerning the Fourth Amendment. Here are the early highlights via SCOTUSblog:

Maryland v. King is next. Justice Kennedy for the Court. The MD Court of Appeals is reversed. The vote is 5-4, an unusual lineup: Scalia dissents, joined by Ginsburg, Sotomayor, and Kagan....

When officers make an arrest supported by probable cause for a serious offense and bring the suspect into the station, taking a cheek swab (and analyzing) is, like fingerprinting and photographing, a reasonable police procedure under the Fourth Amendment.

The full opinion in King is available at this link. I will need to read the opinion before knowing if there is much for sentencing fans here. But the vote line-up alone provide another reminder that Justice Scalia is often much more interested in limiting state criminal justice powers based on the procedural provisions of the Bill of Rights than are Justices Breyer or Kennedy.

The only other notable criminal justice action from SCOTUS today is a per curiam summary reversal of a habeas grant by the Ninth Circuit in Nevada v. Jackson, No. 12–694 (S. Ct. June 3, 2013) (available here). Not sure there is much of enduring interest in this little opinion, save for the notable reality of the the Justices being willing/eager to correct the Ninth Circuit in an AEDPA setting this time involving a non-capital defendant.

As covered via a number posts on this blog, a split Sixth Circuit panel decided in Blewett, based on Equal Protection principles, that the new lower statutory mandatory-minimum thresholds for crack offenses established in the Fair Sentencing Act are applicable in motions to reduce otherwise-final sentences for incarcerated offenders. (The Blewett panel ruling was first discussed in this post, and further here and here.)

As predicted in these posts, the federal government is not happy with this ruling, and late Friday it finally filed a petition for rehearing en banc. Here is the opening paragraph of the argument section from that filing, which can be downloaded below:

The majority’s holding is legally incorrect, in conflict with prior Sixth
Circuit decisions, in conflict with the law of every other circuit, and inconsistent
with Dorsey. Moreover, the effect of the decision will be widespread if it is
allowed to stand. The panel majority’s core reasoning is seriously flawed in
multiple respects, but two central errors highlight the need for en banc
consideration. Download Blewett_petition for rehearing

I would be truly shocked if the full Sixth Circuit did not grant this petition for rehearing. Indeed, in my view the only real procedural questions now are (1) how long will it take the full Sixth Circuit to grant the petition, and (2) what kind of briefing and argument schedule will be set for this important case. (I would urge the Sixth Circuit to give plenty of time for briefing because I know that a number of public policy groups are likely to be eager to file amicus briefs in this matter.)

As I briefly explained in my first post on Blewett, I think a Fifth Amendment equal protection theory used by the majority in the Blewett panel decision provides a very shaky constitutional foundation for giving the new crack statutory sentences
of the FSA retroactive effect. But I also think, in the wake of the passage
of the Fair Sentencing Act and the USSC's
implementation of its new 18-1 crack guidelines retroactively, that a
proper application of the Eighth Amendment could provide a
more reasoned and reasonable basis to give full retroactive effect to all the
provisions of the FSA.

"some in the West Wing privately tell associates they wish he would step down, viewing him as politically maladroit"

The intriguing phrase in the title of this post comes from this lengthy New York Times article about our Nation's Attorney General. The article is headlined "Seeking a Fresh Start, Holder Finds a Fresh Set of Troubles," and here is an excerpt that especially captured my attention:

The president is also said to appreciate Mr. Holder’s integrity and his positions during some of the big debates over antiterrorism policies and other volatile issues. The White House also points to his department’s successful defense of the president’s health care program before the Supreme Court and prosecutions in high-profile terrorism, financial crimes and corporate wrongdoing cases.

Moreover, advisers said, Mr. Obama after a full term in office is less likely to worry about political flare-ups that will eventually die down. “It’s very easy sitting in that town to overestimate the longevity and impact of these issues,” David Axelrod, Mr. Obama’s political strategist, said from Chicago. “I don’t think Americans are sitting around their kitchen tables clamoring for Holder’s head because of the A.P. or Fox subpoenas. It’s not water-cooler discussion.”

I find the first paragraph of this excerpt notable because, at least in my view, the legal accomplishments of the Obama Administration have been achieved mostly despite Holder's underwhelming sterwardship of the Justice Department, not because of it. And I think the second paragraph is amusing because Kate Litvak in this article years ago described the "Blog as a Bugged Water Cooler," and the posts below highlight that many folks on this blog (myself included) have in fact been sitting around this virtual kitchen table talking about who should be the next Attorney General.

Governor McDonnell’s order, which could cover more than 100,000 people,
reflects a growing awareness that disenfranchisement serves no
rehabilitative purpose — and may, in fact, contribute to further
criminal behavior by forcing former offenders to the margins of society.

In all, nearly six million Americans — about 2.5 percent of the
voting-age population — are barred from voting by a confusing patchwork
of state laws that strip convicted felons of the right to vote, often
temporarily, but sometimes for life. Nearly two dozen states have
softened their disenfranchisement policies since the late 1990s, with
several states repealing or scaling back lifetime bans.

But the practice of barring offenders from the polls remains a
pronounced and malignant problem in the South, where it was used
starting in the late 19th and early 20th centuries to curtail the
political power of African-Americans. During that period, state
legislatures in the South went so far as to disenfranchise citizens for
what they viewed as “Negro crimes,” like theft, while exempting
defendants convicted of “white crimes,” including fighting in the
streets and even murder.

The burden of disenfranchisement continues to fall heavily upon blacks
generally, but especially blacks in the South....

Mr. McDonnell, a Republican who was once a prosecutor, saw firsthand how
disenfranchisement, combined with other obstacles, makes it harder for
former offenders to forge lives outside of prison, and he has worked
diligently to address the issue.

Under his order, people convicted of nonviolent felonies will have their
right to vote restored if they have completed their sentences,
satisfied court-ordered conditions and have no pending felony charges.
Although details remain to be worked out, this important move helps
restore fundamental rights for a neglected part of the population.

Another notable GOP member of Congress advocating for federal sentencing reform

As regular readers know, I have been excited and heartened to see a number of notable Republican leaders speak out in favor of state sentencing reforms in the last few years. Significant sentencing reform efforts at the state level have gotten a real boost from GOP governors like Chris Christie, Nathan Deal, Bobby Jindal and John Kasich. Other high-profile folks on that side of the aisle ranging from Newt Gingrich to Ed Meese to David Keene to Grover Norquist have also been vocal in support of cost-saving sentencing reform efforts. But this right-side movement has not gotten much attention or traction at the federal level, save for the recent work of Sentator Rand Paul advocating for reform of mandatory minimum sentencing provisions.

Consequently, it is now great to see that another notable GOP elected official is starting to talk up the need and opportunity for effective sentencing reforms at the federal level. Specifically, as detailed in this lengthy new article in The Salt Lake Tribune, GOP representative Jason Chffetz is now among the Republican stalwarts urging federal sentencing reform. The article is headlined " Chaffetz unveils prison program to reduce recidivism and lower crime: Plan would put low-risk inmates in halfway houses, increase use of ankle bracelets," and here are excerpts:

Hoping to shrink the glut of low-risk federal inmates consuming tax dollars in prison, Rep. Jason Chaffetz is about to unveil a post-sentencing reform bill that would allow drug offenders and others to earn early release into halfway houses, home confinement and ankle-bracelet monitoring.

Quietly, the Utah Republican has worked Washington’s back channels for 18 months to forge bipartisan support. He insists the program — vetted by the Heritage Foundation and the ACLU — would reduce recidivism, lower crime rates and rein in spending on the federal prison system.

“There’s some really good work being done by states that we ought to learn from,” Chaffetz told The Salt Lake Tribune editorial board this week. “It’s a financial imperative, it’s a moral imperative — it just makes a lot of sense.”

The challenge, Chaffetz concedes, is assuring the political right the measure isn’t soft on crime, while convincing the left it goes far enough — short of unwinding mandatory minimum sentences. “The risk, if there is with this, is the over-simplification,” the congressman said, bemoaning bumper-sticker politics. “It does take some explanation. It does take an adult conversation to say, ‘folks, we can do this.’ ”

The proposal marks a pivot for Chaffetz, whose more partisan turns with conservative media include talk of impeaching President Barack Obama regarding recent investigations, including the embassy attack in Benghazi, Libya....

The program would work by dividing federal prisoners into high, moderate or low risks of recidivism. They would be judged by level of engagement in existing programs, holding prison jobs and participation in faith-based services and educational courses.

Low-risk inmates would earn 30 days credit per month, moderate would notch 15 days, while high-risk convicts could get eight days worth of credit. Only low-risk prisoners would be eligible for pre-release custody into a halfway house, home confinement or ankle-bracelet program. Prisoners convicted of violent felonies, terrorism, rape or a sex offense against a minor would not be considered. Neither would undocumented immigrants, an “albatross” and too touchy a topic, Chaffetz says.

The measure neither reduces minimum sentence time nor impacts Truth in Sentencing requirements. That’s because 85 percent of each federal sentence still would be completed as mandated — though some of it could be outside the prison walls....

Brett Tolman, a former U.S. attorney, remembers how inflexible the federal system seemed when a young man “who had a bad weekend” with drugs was slapped with a 35-year minimum sentence.

Then there is Utah music producer Weldon Angelos, who had no prior criminal record and now is considered a casualty of the war on drugs. Convicted in 2003 while he was in his early 20s of selling small amounts of marijuana — a witness claimed he had a gun on his side — Angelos was sentenced to 55 years under federal minimums. Cassell, the judge in the case hamstrung by the law, urged President George W. Bush to commute the sentence, calling it “unjust, cruel and irrational.”...

“We’ve got to fix the front end,” said Mary Price, vice president of the nonprofit Families Against Mandatory Minimums, which is still reviewing the Chaffetz bill. “We’re still pouring thousands of people into prison every year for sentences that are frankly too long.”

Karen McCreary, executive director of ACLU of Utah, says she too would like to see reform to mandatory minimums but is intrigued by Chaffetz’ bill. “The drug wars have made our system so full, so this is a positive,” McCreary said. “It seems like a good step in the right direction.”...

The Chaffetz proposal is modeled partly on Texas, which became the first state to complete a so-called “justice reinvestment” process, saving the state $1.5 billion in construction costs and $340 million in averted operating costs.

Tolman told the editorial board it’s time the feds learned effective prison models from states like Texas. “We’ve always been arrogant and felt that we can do things better,” Tolman said. “Either we’re so large and cumbersome that we can’t, or we’re so ignorant and stubborn that we won’t.”

"Monitoring the Plea Process"

The title of this post is the title of this notable new paper by
Susan Klein now avaiable via SSRN. Here is the abstract:

Gideon versus Wainwright heralded a new age in American criminal prosecutions. Indigent blacks in the South would have the same opportunity to fight felony criminal charges and receive the same sentencing discounts of favorable guilty pleas as rich white northerners, and the innocent would be accurately separated by adversarial testing from the guilty. Yet fifty years later, indigent defendants (who comprise 80% of total defendants), often get substandard counsel, and innocent individuals are rarely, but sometimes convicted or plead guilty. Some of the blame falls squarely on the Court for settling on the contours of our current two-pronged test in Strickland versus Washington, that determines when counsel is ineffective and the defendant is accordingly prejudiced. Some blame falls on legislators for failing to adequately fund defense counsel. Our criminal justice evolved from an adversarial system to what Judge Lynch calls, "a defacto administrative regime". The criminal justice system is the plea bargaining system.

In this essay, the author posits that last term's Lafler versus Cooper and Missouri versus Frye gave us another chance to both police equality of sentences for the guilty, and to mandate better investigation of the underlying offense to ferret out the innocent. Information and resource disparity skews the system. The defense bar cannot buck a system stacked so heavily against them. Large-scale structural reform such as legislation or proper funding for defense is equally unlikely. Plea bargaining has failed.

Professor Klein suggests that our most politically feasible hope for reform is for federal and state judges to amend the rules of criminal procedure in order to monitor and record the discovery and plea negotiation process via nonwaivable conferences. A second proposal is for the Department of Justice and local District Attorneys' Offices to implement internal guidelines to regulate the timing and content of plea negotiations and discovery procedures. Though the Court imposed its new Sixth Amendment duties on the defense bar, it is prosecutors who have the incentive to ensure the finality of guilty pleas and to stave off potentially harsher legislative or judicial action in this area.